Mercer and Smyth v Mercer
| Jurisdiction | Northern Ireland |
| Judgment Date | 21 December 1924 |
| Date | 21 December 1924 |
| Docket Number | (1923. No. 1.) |
| Court | Court of Appeal (Northern Ireland) |
Appeal. (N. I.)
Practice - New trial - Improper admission of evidence - Action to have will established - No substantial wrong or miscarriage - R.S.C. (Ir.), 1905,Or. 39, r. 7.
New Trial Motion.
The plaintiffs applied for a new trial (inter alia) on the ground that the findings of the jury were based upon evidence which was illegal and improper, and should not have been admitted.
The action was tried before Brown J. and a common jury on June 20th and 21st, 1923.
Mr. Francis Anderson, solicitor, former partner of Mr. Monroe C.S., stated that he was present on 12th March, 1917, when deceased and defendant, Robert Mercer, came in to see Mr. Monroe. Robert Mercer said they had come to make a new will. "Haven't you, uncle?" Uncle (the deceased) assented by nodding. Mr. Monroe asked him a question. He did not reply, but looked at his nephew. Mr. Monroe fetched the will. Robert said, "Take it, and see if it was his." Mr. Monroe showed him the signature. The old man tore it up and threw it on the fire. Mr. Monroe said he would not make a will for him unless he was left alone with him. Robert refused to leave. Robert said when he came in, that he had instructions for a new will written out in his pocket. Mr. Monroe told them both that he had made the previous will, relying mainly on Mr. Brown, whom he had known for twenty years, and believing it was a family settlement, and that everyone was satisfied; but that if there was any dispute he would not be prepared to swear that the testator was of testamentary capacity. Then Robert told his uncle to come away, and they left. Mr. Monroe then wrote down on a slip of paper what had occurred, and signed it and showed it to me. [This
memorandum, made by Mr. Monroe, was offered in evidence.] R. Best K.C., Attorney-General (N.I.), for the plaintiffs, objected. His Lordship admitted the document, subject to objection. The jury found—1, that the will dated 12th March, 1917, and codicil dated 16th July, 1919, were duly executed, but that at the time of their execution the deceased was not of sound mind, memory, and understanding, and that the deceased did not know and approve of the contents thereof.The plaintiffs brought an action to establish a will. At the trial evidence was tendered and admitted on behalf of defendant of a memorandum made be a deceased partner in a firm of solicitors giving details of an interview...
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